The imposition of a more severe penalty upon a defendant after remand by an appellate court for resentencing for the crime might violate due process of law if imposed as purposeful punishment for having successfully appealed, but there was no retaliatory or arbitrary motive behind the imposition of a more severe penalty upon resentencing where an original sentencing Judge had disqualified himself and a different Judge, relying on a presentence report more favorable to the defendant than at the original sentencing and unaware of the prior sentence except for information willingly supplied by defense counsel, imposed the stiffer penalty after clearly stating his rationale.

The defendant was convicted on June 22, 1971 of armed robbery, MCLA 750.529; MSA 28.797, and rape, MCLA 750.520; MSA 28.788. He was sentenced to concurrent prison terms of 10 to 15 years by Judge Joseph A. Moynihan.

The convictions were subsequently affirmed by this Court, but the case was remanded for resentencing because the presentence report may have contained improper material. People v Jones, 47 Mich App 160; 209 NW2d 322 (1973).

The opinion of the Court of Appeals gave Judge Moynihan two options. He could hold an evidentiary hearing to determine if the presentence report contained a prior conviction that was constitutionally infirm which would require resentencing. In the alternative he could set aside the sentence and order resentencing.

Judge Moynihan chose the latter alternative. He granted the defendant's motion to strike the prior conviction and other arguably improper material from the presentence report. He then disqualified himself from the resentencing proceeding.

The case was reassigned to Judge George Bowles for resentencing. However, Judge Bowles granted another motion to strike additional material from the presentence report, and in turn disqualified himself from the case.

The matter was then reassigned to Judge Thomas Foley, who resentenced the defendant to terms of 20 to 40 years. The defendant appeals from the resentencing.

To adequately set the framework for discussing this issue, it is necessary to set forth the colloquy at the time of resentencing before Judge Foley, taken from the ...

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